Surveillance

Question 1

When police lawfully enter a private premises, can they, without a warrant, record by way of audio or visual device what they hear and see there, providing the device does not enhance the ability to observe?

Answer 1

Yes, because they are lawfully in that private premises and there is no enhancement.

Question 2

The Act restricts the use of a surveillance devices in places where…

Answer 2

an individual ought reasonably to expect are private.

(unless in situations of emergency or urgency)

Question 3

Does the Search and Surveillance Act 2012 regulate only those surveillance activities undertaken by means of a device?

Answer 3

Yes.

Question 4

The Search and Surveillance Act 2012 establishes clear boundaries for the lawful use of a surveillance device; broken down into in what 3 catagories:

Answer 4

1. where trespass is not involved
2. where trespass is involved
3. where warrantless powers exist

(tin/ti warrantless powers)

Question 5

SURVEILLANCE RISK ASSESSMENT:

These risks must be:

Answer 5

1. Identified
2. Assessed
3. Considered in planning before surveillance is executed

(IPA)

TENR applied

Question 6

SURVEILLANCE RISK ASSESSMENT:

Where does risk assessment fit into the surveillance device warrant applicaiton process?

Answer 6

it must be repeated before a surveillance device warrant is executed.

Question 7

What are the activities for which a surveillance device warrant is required?

and what are the exceptions?

Answer 7

Required for observation of private activity in private premises, and any recordingof that observation, by means of a visual surveillance device.

Exceptions:

• situations of emergency or urgency (although use of a surveillance device in these situations must still be reported in the on-line system); and
• activities that do not require a warrant.

Question 8

Do you still have to report on-line the use of a surveillance device in circumstances where an exemption from applying for a warrant was justified due to emergency or urgency?

Answer 8

Yes

Question 9

In the case of private property and goods; goods means…

Answer 9

Goods generally means chattles and includes vehicles and other tangible belongings.

Question 10

Is it possible to be traspassing on goods?

Answer 10

Yes.

Surveillance is unlawful if it involves a trespass, which is unauthorised entry onto private land or unauthorised handling of goods, unless authorised by a surveillance device warrant.

(exceptions apply in situations of emergency or urgency)

Question 11

Define Private Premises:

Answer 11

Any:

• dwellinghouse,
• marae, and
• any other premises not within the definition of non-private premises.

Question 12

Define Non-Private Premises?

Answer 12

Non private premise means premises, or part of a premises to which members of the public are frequently permitted to have access, and includes any part of a:

• hospital,
• bus station,
• railway station,
• airport or
• shop.

(THiS)

Exceptions:

• hospitals - theatres and consulting rooms
• railway stations - office areas, staff meal rooms

Question 13

“Ought reasonably to expect” is an objective test that means:

Answer 13

What any person would expect

Question 14

Trespass surveillance means surveillance that involves trespass onto…

Answer 14

• land, or
• goods

Question 15

Trespass surveillance occurs the moment an enforcement officer does what?

Answer 15

• steps onto private property without consent

Question 16

Section 46

A surveillance device warrant is required when undertaking any 1 of the following activities:

Answer 16

(a) use of an interception device to intercept a private communication:
(b) use of a tracking device, except where a tracking device is installed solely for the purpose of ascertaining whether a thing has been opened, tampered with, or in some other way dealt with, and the installation of the device does not involve trespass to land or trespass to goods:
(c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device:
(d) use of a surveillance device that involves trespass to land or trespass to goods:
(e) observation of private activity in the curtilage of private premises, and any recording of that observation, if any part of the observation or recording is by means of a visual surveillance device, and the duration of the observation, for the purposes of a single investigation, or a connected series of investigations, exceeds—
(i) 3 hours in any 24-hour period; or
(ii) 8 hours in total.

Question 17

Can you use a visual surveillance device within the curtilage of private property and not require a warrant?

Answer 17

Yes. But usage is restricted to time limitations.

Question 18

Activites for which a surveilnce device warrant is required.

Give the Section and what it says:

Answer 18

Section 46

(e) observation of private activity in the curtilage of private premises, and any recording of that observation or recording is by means of a visual surveillance device, and the duration of that observation, for the purpose of a single investigation, or a connected series of investigations, exceeds -
(i) 3 hours in any total 24-hour period; or
(ii) 8 hours in total.

Question 19

Interception means:

(not interception-device)

Answer 19

In relation to private communication, includes:

• hear,
• listen to
• record
• monitor
• aquire

or Receive the communication either -

• when it is taking place, or
• while it is in transit.

Question 20

What type of warrant do you need for the use of an Interception Device?

Waht section is this found?

Answer 20

A Surveillance Device Warrant.

Section 46(a)

Question 21

What are the limitations on the use of a interception device, with respect to the grounds for using it?

Answer 21

For serious offences only.

A surveillance device warrant will only be authorised for use of an interception device for gather ing evidential material for:

• offences punishable by 7 or more years imprisonment
• indentified Arms Act 1983 offences
• identified Psycoactive Substances Act 2013 offences

Question 22

What is the offence threshold for applying for a surveillance device warrant for a tracking device?

Answer 22

Must be an offence punishable by imprisonment

Question 23

When is a warrant not required for a tracking device?

Answer 23

Section 46(b)

Where it is installed solely for the purpose of:

• ascertaining whether a thing has been opened, tampered with, or in some other way dealt with, and
• the installation of the device does not involve trespass to land or to goods.

Question 24

Section 46 - When would a surveillance device warrant be required for the use of a tracking device?

Answer 24

Activites for which surveillance device warrant is required:

• for tracking a thing or person
• when the instalation of the device involves trespass to land or goods

Question 25

Can any inforcement officer use a tracking device?

Answer 25

No. Tracking devices may only be used with the assistance of specialist squads.

Question 26

Where can you go to find advice about when and how to request the assistance of a surveillance squad?

Answer 26

Advice can be found inthe Surveillance chapter of the Police Manual.

Question 27

For a situation to be regarded as one of Emergency or Urgency, two ingredients must be met. What are they?

Answer 27

1. An officer must be entitled to apply for a surveillance device warrant as the situation is one of serious criminal activity.
2. Impracticable in the circumstances. The urgency required for the use of the device makes it impracticable to wait for the approval process.

Question 28

What section deals with situations of emergency and urgency?

Answer 28

Section 48

Question 29

Surveillance without warrant in situations of emergency or urgency is permitted only where there is an entitlement to apply for a warrant and it is impracticable in the circumstances to wait for a warrant to be approved.

There are 6 situations of emergency or urgency that would justify the use of a surveillance device without a warrant. These are?

Answer 29

The situations are as follows:

(1) 14 year offences (serious)
(a) the enforcement officer has reasonable grounds—
(i) to suspect that an offence punishable by a term of imprisonment of 14 years or more or an offence against section 6B(1) (terrorist act: planning or other preparations to carry out) of the Terrorism Suppression Act 2002 has been, is being, or is about to be committed; and
(ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence:
(2) Section 14 offence (life and property)
(b) the enforcement officer has reasonable grounds—
(i) to suspect that any 1 or more of the circumstances set out in section 14(2) exist; and
(ii) to believe that use of the surveillance device is necessary to prevent the offending from being committed or continuing, or to avert the emergency:
(3) Section 18(2) offence (arms)
(c) the enforcement officer has reasonable grounds—
(i) to suspect that any 1 or more of the circumstances set out in section 18(2) exist; and
(ii) to believe that use of the surveillance device is necessary to facilitate the seizure of the arms:

(4) Arms Act 1983 (catagory offences 3&4)

(d) the enforcement officer has reasonable grounds—
(i) to suspect that a category 3 or 4 offence in relation to arms or an offence against the Arms Act 1983 has been committed, or is being committed, or is about to be committed; and
(ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence:
(5) MODA 1975 (specified)
(e) the enforcement officer has reasonable grounds—
(i) to suspect that an offence has been committed, or is being committed, or is about to be committed in relation to a controlled drug specified or described in Schedule 1, Part 1 of Schedule 2, or Part 1 of Schedule 3 of the Misuse of Drugs Act 1975, or to a precursor substance specified or described in Part 3 of Schedule 4 of that Act; and
(ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence:

(6) Section 81(2) offences

(f) the enforcement officer has reasonable grounds—
(i) to believe that a person is in possession of any 1 or more of the things described in section 81(2)(a) to (d); and
(ii) to believe that use of the surveillance device is necessary to facilitate the thing’s seizure.

Question 30

What is section 18 (2)?

Answer 30

18 Warrantless searches associated with arms

(1) A constable who has reasonable grounds to suspect that any 1 or more of the circumstances in subsection (2) exist in relation to a person may, without a warrant, do any or all of the following:
(a) search the person:
(b) search any thing in the person’s possession or under his or her control (including a vehicle):
(c) enter a place or vehicle to carry out any activity under paragraph (a) or (b):
(d) seize and detain any arms found:
(e) seize and detain any licence under the Arms Act 1983 that is found.
(2) The circumstances are that the person is carrying arms, or is in possession of them, or has them under his or her control, and—
(a) he or she is in breach of the Arms Act 1983; or
(b) he or she, by reason of his or her physical or mental condition (however caused),—
(i) is incapable of having proper control of the arms; or
(ii) may kill or cause bodily injury to any person; or
(c) that, under the Family Violence Act 2018,—
(i) a protection order or a police safety order is in force against the person; or
(ii) there are grounds to make an application against him or her for a protection order.
(3) A constable may, without a warrant, enter a place or vehicle, search it, seize any arms or any licence under the Arms Act 1983 found there, and detain the arms or licence if he or she has reasonable grounds to suspect that there are arms in the place or vehicle—
(a) in respect of which a category 3 offence, a category 4 offence, or an offence against the Arms Act 1983 has been committed, or is being committed, or is about to be committed; or
(b) that may be evidential material in relation to a category 3 offence, a category 4 offence, or an offence against the Arms Act 1983.

Question 31

What does section 14(2) say?

Answer 31

14 Warrantless entry to prevent offence or respond to risk to life or safety

(1) A constable who has reasonable grounds to suspect that any 1 or more of the circumstances in subsection (2) exist in relation to a place or vehicle may—
(a) enter the place or vehicle without a warrant; and
(b) take any action that he or she has reasonable grounds to believe is necessary to prevent the offending from being committed or continuing, or to avert the emergency.
(2) The circumstances are as follows:
(a) an offence is being committed, or is about to be committed, that would be likely to cause injury to any person, or serious damage to, or serious loss of, any property:
(b) there is risk to the life or safety of any person that requires an emergency response.

Question 32

When it comes to emergency or urgency, what 6 situations qualify:

Answer 32

1. 14 year + offences
2. Section 14(2)
3. Section 18(2)
4. Arms Act 1983 (specified offences)
5. MODA 75 (specified)
6. Section 81(2) drugs

Question 33

The warrantless period for the use of a surveillance device in a situation of emergency or urgency is a period not exceeding ….

What period of time?

Which section is this found?

Answer 33

48 hours

Section 48.

Question 34

Who can approve the emergency use of an interception device?

Answer 34

Detective Inspector

Question 35

If an interception device is used in an emergency without the approval of a Detective Inspector, what situations must be present?

Answer 35

• the immediacy of the situation does not allow for prior planning approval from a Detective Inspector in consultation with Legal Services; and
• Statutory criteria is met; and
• an opportunity arises to obtain evidential material that would otherwise be lost if not taken at the time.

Question 36

There are unique reporting requirements for using an interception device in an emergency situation. What are those requirements and what section discusses them?

Answer 36

Section 60

When a warrantless search power is exercised the enforcement officer must provide notification to a Judge within 1 month after the date of the last day of any period of 48 hours or less over which the surveillance device was used.

Question 37

How long can a surveillance device warrant be issued for?

Answer 37

No more than 60 days.

Question 38

When does the period for a surveillance device start?

Answer 38

As soon as it is issued.

Question 39

Can a surveillance device warrant be extended?

Answer 39

No. Note even if the original warrant was less than 60 days.

Since there is no prevision for an extension, the only alternative is to apply for an new warrant.